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Monday, June 29, 2015

Marriage News Watch, 6/29/15

Matt Baume of the American Foundation for Equal Rights reports:

Also in today's news: despite the defiant blustering of recalcitrant state officials over the weekend, gay marriages are now taking place in Louisiana and Mississippi, though some county clerks in Alabama and Texas are still refusing to issue marriage licenses to gay couples because God, Bible, and "religious liberty," etc.

And law professor Michael Dorf at SCOTUSblog makes a wry observation on Justice Scalia's assoholic dissent in Obergefell:
And then there is Justice Scalia, who professes to worry about the ruling’s implications for democracy but seems more irked by Justice Kennedy’s prose style. In perhaps the most intemperate line in the U.S. Reports, Justice Scalia mocks the opening line of the majority opinion: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.

Forget about the bag. Justice Scalia should not appear in public except in a full burka.

Dorf also explains why the majority opinion is firmly grounded in the Constitution's guarantee of Equal Protection, emphasis mine:
Were the dissenters more interested in understanding than ridiculing the majority opinion, they would see that equal protection considerations help explain why a right to same-sex marriage does not necessarily open the door to polygamy, adult incest, and the other supposed horribles in their gay shame parade. With a few notable exceptions, for thousands of years people have been stigmatized, beaten, and killed for the sin of loving someone of the same sex. The dissenters regard this shameful history only as the basis for continued denial of constitutional rights. The majority, by contrast, sees in this history of subordination a special reason to be skeptical of the reasons advanced for excluding same-sex couples from the institution of marriage.

Justice Kennedy writes: “Especially against a long history of disapproval of their relationships, th[e] denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” It really is that simple.

And while your Head Trucker is no legal expert, he finds a very interesting philosophical parallel in reasoning between the marriage ruling and the case of Brown v. Board of Education (1954):
To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

Equal justice under law. That's the way it goes in these United States. 'Nuff said.

The west pediment of the Supreme Court building.


Frank said...

Great post. I think Scalia's dissent (tantrum) was/is incendiary and most disturbing. I fear it will be use for many years to come to justify more anti-gay bigotry and backlash.

Russ Manley said...

Yes and yes, I agree. A pity there's no way to boot him out of office - he could have a wonderful new career on talk radio.

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